The ongoing illegal state of war between the Hawaiian Kingdom and the United States since 1893 and the prolonged occupation has violated all norms of international law. As we are approaching the international exposure of the prolonged occupation through the international commission of inquiry proceedings stemming from the Larsen v. Hawaiian Kingdom held under the auspices of the Permanent Court of Arbitration, it is timely to address other wars and subsequent occupations that the United States was involved, which eventually came to an end with the payment of reparations. These were the wars with Japan from 1941-51 and with Italy from 1938-47.
Reparations were made by Japan pursuant to Article 14(a), 1951 Japan Treaty of Peace, which states, “It is recognized that Japan should pay reparations to the Allied Powers for the damage suffering caused by it during the war.” Below are Japanese reparations to countries for 10 years of war (1941-51).
|Country||Amount in US$||Date of Treaty|
|Burma||$200 million||Nov. 5, 1955|
|Philippines||$550 million||May 9, 1956|
|Indonesia||$223 million||Jan. 20, 1958|
|Vietnam||$39 million||May 13, 1959|
|Average||$250 million||Mean year—1957|
|Inflation calculator||$2 billion||Year—2017|
Italian reparations to countries for 9 years of war (1938-47) were made pursuant to Article 74 of the 1947 Italian Treaty of Peace.
|Country||Amount in US$||Date of Treaty|
|Soviet Union||$100 million||Feb. 10, 1947|
|Inflation calculator||$890 million||Year—2017|
As a basis to calculate the amount of reparations that could be owed to the Hawaiian Kingdom by the United States up to the year of 2017, which is 124 years of war, the Japanese and the Italian reparations paid could serve as a guide by applying their years of war to the years of war with the Hawaiian Kingdom. In the case of Japan, reparations to be paid by the United States could be calculated at $25 billion, which is $200 million annually multiplied by 124 years of war with the Hawaiian Kingdom. In the case of Italy, reparations could be calculated at $12 billion, which is $99 million annually multiplied by 124 years of war with the Hawaiian Kingdom.
This measurement could also be applied to other countries who are parties to the conflict and who have been complicit in the belligerent actions taken by the United States against the Hawaiian Kingdom such as the 20 States that unlawfully recognized the United States surrogate calling itself the so-called Republic of Hawai‘i in 1894. These States include Austria-Hungary, Belgium, Brazil, Chile, China, France, Germany, Guatemala, Italy, Japan, Mexico, Netherlands, Norway-Sweden, Peru, Portugal, Russia, Spain, Switzerland, and the United Kingdom. According to renowned American jurist, Professor Ellery Stowell, Intervention in International Law (1921) at 349, n. 75, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.”
Seizing of Assets:
Seizure of Japanese assets in the territories of Allied Powers was also done pursuant to Article 14(a)(2)(I), 1951 Japan Treaty of Peace, which states, “Subject to the provisions of sub-paragraph (II) below, each of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of (a) Japan and Japanese nationals, (b) persons acting for or on behalf of Japan or Japanese nationals, and (c) entities owned or controlled by Japan or Japanese nationals, which on the first coming into force of the present Treaty were subject to its jurisdiction.”
Seizure of Italian assets in the territories of Allied Powers were made pursuant to Article 79, Italian Treaty of Peace, which states, “Each of the Allied and Associated Powers shall have the right to seize, retain, liquidate or take any other action with respect to all property, rights and interests which on the coming into force of the present Treaty are within its territory and belong to Italy or to Italian nationals, and to apply such property or the proceeds thereof to such purposes as it may desire, within the limits of its claims and those of its nationals against Italy or Italian nationals, including debts, other than claims fully satisfied under other Articles of the present Treaty.”
In the United States, Japanese assets seized amounted to $85 million (inflation conversion for 2017—$752 million), and Italian assets seized amounted to $62 million (inflation conversion for 2017—$766 million). Pursuant to Presidential Executive Order no. 9567—Alien Property Custodian (1945), the United States took title by “vesting” of all property of Japan and Germany and their nationals. Under the 1948 War Claims Act proceeds derived from these assets would not be returned, but rather placed in a War Claims Fund from which payments would be made to United States citizens that suffered as a consequence of the war with Japan and Germany.
Assets held by the United States and other States who are parties to the conflict since January 16, 1893, to include their nationals, within the territorial jurisdiction of the Hawaiian Kingdom are yet to be determined. The liquidation of these assets could be utilized in similar fashion as the United States did regarding Japanese and German properties vested under Alien Property Custodian, to compensate Hawaiian subjects who were subjected to forced conscription into the United States armed forces, to include deaths, during World War I, World War II, Korean War and the Vietnam War.
There has been some confusion as to who, in particular, determines whether a state of war exists for international law purposes. Is it a decision made by army commanders, international courts, or the heads of state? To answer this question we first need to understand the term war. By definition, war is a violent contention between two or more countries, called States, which is allowable under international law.
War as it is understood today is different from what it was understood in the nineteenth century when the Hawaiian Kingdom government was unlawfully overthrown by United States armed forces on January 17, 1893. According to Professor Brownlie, “The right of war, as an aspect of sovereignty, which existed in the period before 1914, subject to the doctrine that war was a means of last resort in the enforcement of legal rights, was very rarely asserted either by statesmen or works of authority without some stereotyped plea to a right of self-preservation, and of self-defence, or to necessity or protection of vital interests, or merely alleged injury to rights or national honour and dignity.” (Ian Brownlie, International Law and the Use of Force by States (1963) 41).
In the absence of a system of dispute resolution, such as today’s Permanent Court of Arbitration (est. 1899) or the International Court of Justice (est. 1945), war was seen as a form of judicial procedure, a litigation of sorts between nations that involved lethal punishment. It was a means by which one State could obtain redress for wrongs committed against it. War, however, was considered a course of last resort.
“It was generally thought that a state of war came into existence between two countries if, and only if, one of these countries made it clear that it regarded itself as being in a state of war,” says Judge Greenwood. (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). Representatives of countries in international law are Heads of Governments, whether they are Presidents, Monarchs or Prime Ministers. Any political determination made by these Heads of States that their countries are in a state of war is conclusive. In the case of the United States it would be the President, and in the case of the Hawaiian Kingdom it would be the Monarch.
International law differentiates a “declaration of war” from a “state of war.” According to McNair and Watts, “the absence of a declaration…will not of itself render the ensuing conflict any less a war.” In other words, since a state of war is based upon concrete facts of military action there is no requirement for a formal declaration of war to be made. In 1946, a United States Federal Court had to determine whether a United States naval captain’s life insurance policy, which excluded coverage if death came about as a result of war, covered his death during the Japanese attack of Pearl Harbor on December 7, 1945. The family of the captain was arguing that the United States was not a war at the time of his death because the Congress did not declare war against Japan until the following day. The Court denied the family’s claim and determined, “that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor.” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).
On the 100th anniversary of the United States unlawful overthrow of the Hawaiian Kingdom government in 1893, the United States Congress enacted a joint resolution offering an apology. Of significance in the resolution was a particular “whereas” clause, which stated “Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reportedly fully and accurately on the illegal acts of the conspirators, described such acts as an ‘act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, and acknowledged that by such acts the government of a peaceful and friendly people was overthrown.” (Annexure 2, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).
At first read, it would appear that the “conspirators” were the subjects that committed the “act of war,” but this is misleading. First, under international law, only a country can commit an “act of war”, whether through its military and/or its diplomats; and, second, under municipal laws, which are the laws applicable to a particular country, conspirators within a country could only commit treason not “acts of war.” These two concepts are reflected in the terms coup de main and coup d’état. The former is a successful invasion by an outside military force, while the former is a successful internal revolt, which was also referred to in the nineteenth century as a revolution. According to the United States Department of Defense, a coup de main is an “offensive operation that capitalizes on surprise and simultaneous execution of supporting operations to achieve success in one swift stroke.” (U.S. Department of Defense, The Dictionary of Military Terms (2009)).
In a petition to President Cleveland on December 27, 1893, from the Hawaiian Patriotic League, its leadership, comprised of Hawaiian statesmen and lawyers, clearly articulated the difference between a “revolution” and a “coup de main,” and, as such, an international crime was committed. The petition read:
“Last January, a political crime was committed, not only against the legitimate Sovereign of the Hawaiian Kingdom, but also against the whole of the Hawaiian nation, a nation who, for the past sixty years, had enjoyed free and happy constitutional self-government. This was done by a coup de main of U.S. Minister Stevens, in collusion with a cabal of conspirators, mainly faithless sons of missionaries and local politicians angered by continuous political defeat, who, as revenge for being a hopeless minority in the country, resolved to ‘rule or ruin’ through foreign help. The facts of this ‘revolution,’ as it is improperly called, are now a matter of history.” (Petition of the Hawaiian Patriotic League to President Cleveland (Dec. 27, 1893), The Executive Documents of the House of Representatives (1895), 1295).
Whether by chance or design, the 1993 Congressional Apology Resolution did not accurately reflect what President Cleveland stated in his message to Congress on December 18, 1893. When Cleveland stated that the “military demonstration upon the soil of Honolulu was of itself an act of war,” he was referring to United States armed forces and not to any of the conspirators. Cleveland noted, “that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies.” Clearly the act of war was committed by the armed forces of the United States. The landing, however, was just the beginning stage of a coup de main with the ultimate goal of seizing control of the Hawaiian government.
As part of the plan, the U.S. diplomat, John Stevens, would prematurely recognize the small group of insurgents on January 17th as if they were a successful revolution thereby giving it de facto status. International law, however, provides the parameters by which a revolution is deemed to have been successful. Foreign States would acknowledge success when an insurgency has secured complete control of all governmental machinery, no opposition by the lawful government, and has the acquiescence of the national population. According to Professor Lauterpacht, “So long as the revolution has not been successful, and so long as the lawful government…remains within national territory and asserts its authority, it is presumed to represent the State as a whole.” (E. Lauterpacht, Recognition in International Law (1947) 93). With full knowledge of what constitutes a successful revolution, Cleveland provided a blistering indictment:
“When our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety…declared it to exist. It was neither a government de facto nor de jure. That it was not in such possession of the Government property and agencies as entitled it to recognition is conclusively proved by a note found in the files of the Legation at Honolulu, addressed by the declared head of the provisional government to Minister Stevens, dated January 17, 1893, in which he acknowledges with expressions of appreciation the Minister’s recognition of the provisional government, and states that it is not yet in the possession of the station house (the place where a large number of the Queen’s troops were quartered), though the same had been demanded of the Queen’s officers in charge.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 605).
“Premature recognition is a tortious act against the lawful government,” explains Professor Lauterpacht, which “is a breach of international law.” (Ibid, 95). And according to Stowell, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.” (Ellery C. Stowell, Intervention in International Law (1921) 349, n. 75). Furthermore Stapleton states, “Of all the principles in the code of international law, the most important—the one which the independent existence of all weaker States must depend—is this: no State has a right FORCIBLY to interfere in the internal concerns of another State.” (Augustus Granville Stapleton, Intervention and Non-Intervention (1866) 6).
Cleveland then explained to the Congress the egregious effects these acts of war had upon the Hawaiian government and its apprehension of a “cabal of conspirators” who committed high treason.
“Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority. She knew that she could not withstand the power of the United States, but she believed that she might safely trust to its justice. Accordingly, some hours after the recognition of the provisional government by the United States Minister, the palace, the barracks, and the police station, with all the military resources of the country, were delivered up by the Queen upon the representation made to her that her cause would thereafter be reviewed at Washington, and while protesting that she surrendered to the superior force of the United States, whose Minister had caused United States troops to be landed at Honolulu and declared that he would support the provisional government, and that she yielded her authority to prevent collision of armed forces and loss of life and only until such time as the United States, upon the facts being presented to it, should undo the action of its representative and reinstate her in the authority she claimed as the constitutional sovereign of the Hawaiian Islands.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 606).
According to Professor Wright, “War begins when any state of the world manifests its intention to make war by some overt act, which may take the form of an act of war.” Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924) 758). In his review of customary international law in the nineteenth century, Professor Brownlie concluded, “that in so far a ‘state of war’ had any generally accepted meaning it was a situation regarded by one or both parties to a conflict as constituting a ‘state of war.’” (Brownlie, 38).
Cleveland concluded by an “act of war…the Government of a feeble but friendly and confiding people has been overthrown.”(Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 608). More importantly, Cleveland referred to the Hawaiian people as “friendly and confiding,” not “hostile.” This is a classic case of where the United States President admits an unjust war, but a state of war nevertheless. In the absence of a treaty or agreement to end the state of war that has ensued for over a century, international humanitarian law regulates the Hawaiian situation.
These are the very matters that will come before the International Commission of Inquiry: Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.
As the Tribunal at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom pointed out in, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” (Award, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 581). As an independent State, the Hawaiian Kingdom was a member of the Family of Nations along with other independent States including the United States. According to Westlake in 1894, they comprised, “First, all European States […] Secondly, all American States […] Thirdly, a few Christian States in other parts of the world, as the Hawaiian Islands, Liberia and the Orange Free State.” (John Westlake, Chapters on the Principles of International Law (1894) 81).
In 1893, there were 44 independent and sovereign States in the Family of Nations: Argentina, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chili, Colombia, Costa Rica, Denmark, Ecuador, France, Germany, Great Britain, Greece, Guatemala, Hawaiian Kingdom, Haiti, Honduras, Italy, Liberia, Lichtenstein, Luxembourg, Netherlands, Mexico, Monaco, Montenegro, Nicaragua, Orange Free State that was later annexed by Great Britain in 1900, Paraguay, Peru, Portugal, Romania, Russia, San Domingo, San Salvador, Serbia, Spain, Sweden-Norway, Switzerland, Turkey, United States of America, Uruguay, and Venezuela. In 1945, there were 45, and today there are 193.
From a State of Peace to a State of War—No Middle Ground
International law, which is law between nations, formed the protocol and relations between these member States. “Traditional international law was based upon a rigid distinction between the state of peace and the state of war,” states Judge Greenwood (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). “Countries were either in a state of peace or a state of war; there was no intermediate state.” (Ibid.) This is also reflected by the fact that the renowned jurist of international law, Lassa Oppenheim, separates his treatise on International Law into two volumes, Vol. I—Peace, and Vol. II—War and Neutrality.
Throughout the nineteenth century, the Hawaiian Kingdom was not only independent and sovereign, but also a neutral State explicitly recognized by treaties with Germany, Spain and Sweden-Norway. The Hawaiian Kingdom enjoyed a state of peace with all States. This status of affairs, however, was interrupted by the United States when the state of peace was transformed to a state of war that began on January 16, 1893. On January 17, 1893, Queen Lili‘uokalani, the Executive Monarch of the Hawaiian Kingdom, made the following protest and a conditional yielding of her authority to the President of the United States in response to military action taken against the Hawaiian government by order of the U.S. resident diplomat John Stevens. The Queen’s protest stated:
“I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom. That I yield to the superior force of the United States of America, whose minister plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government. Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” (Annexure 2, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).
Under international law, the landing of American troops without the consent of the Hawaiian government was an act of war. But in order for an act of war to transform the status of affairs to a state of war, the act must be unlawful under international law. In other words, an act of war would not change the status of affairs to a state of war from that of peace if the action were legal under international law. According to Professor Wright, “An act of war is an invasion of territory…and so normally illegal. Such an act if not followed by war gives grounds for a claim which can be legally avoided only by proof of some special treaty or necessity justifying the act.” (Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924), 756).
Military action in a foreign State considered lawful under international law, includes proportionate reprisals in response to another State’s action just short of all out war, and military actions taken to protect its citizenry in the foreign State. Furthermore, the act of war must have been intentional—animo belligerendi, to overthrow the government of the invaded State. As international law is a law between States, which derives from agreements, the claim made by Queen Lili‘uokalani that United States troops unlawfully invaded the kingdom had to be acknowledged by the President of the United States as true. In her protest she called upon the President to investigate the facts and then “undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” In international law, this is called restitutio in integrum.
After ten months of investigating the overthrow, President Cleveland notified the Congress on December 18, 1893, that the “military demonstration upon the soil of Honolulu was of itself and act of war” that could not be justified under international law as “either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperiled lives and property of citizens of the United States.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 604).
The President then concluded, “By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.” (Ibid, 608). He notified the Congress that he initiated negotiations with the Queen “to aid in the restoration of the status existing before the lawless landing of the United States forces at Honolulu on the 16th of January last, if such restoration could be effected upon terms providing for clemency as well as justice to all parties concerned.” (Ibid, 610). What Cleveland did not know at the time of his message to the Congress was that the Queen, on the very same day in Honolulu, accepted the conditions for settlement in an attempt to return to a state of peace. The executive mediation began on November 13, 1893 between the Queen and U.S. diplomat Albert Willis. The President was not aware of the agreement until January 12, 1894.
Despite being unaware of the agreement to settle, President Cleveland’s political determination was an acknowledgment that the United States was in a state of war with the Hawaiian Kingdom since the invasion occurred on January 16, 1893, as stated by the Queen in her protest on January 17, 1893. International law defines war as “a contention between States for the purpose of overpowering each other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 74).
Once a state of war ensued between the Hawaiian Kingdom and the United States, “the law of peace ceased to apply between them and their relations with one another became subject to the laws of war, while their relations with other states not party to the conflict became governed by the law of neutrality.” (Greenwood, 45). This outbreak of a state of war between the Hawaiian Kingdom and the United States would “lead to many rules of the ordinary law of peace being superseded…by rules of humanitarian law.” (Ibid, 46).
A state of war “automatically brings about the full operation of all the rules of war and neutrality.” (Myers S. McDougal, “The Initiation of Coercion: A Multi-temporal Analysis,” 52 American Journal of International Law (1948) 247). And according to Venturini, “If an armed conflict occurs, the law of armed conflict must be applied from the beginning until the end, when the law of peace resumes in full effect.” (Gabriella Venturini, “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015), 52). Only by a treaty or agreement between the Hawaiian Kingdom and the United States could a state of peace be restored, without which a state of war ensues.
In order to transform the state of war to a state of peace an attempt was made by executive agreement entered into between President Cleveland, by his resident diplomat Albert Willis, and Queen Lili‘uokalani in Honolulu on December 18, 1893 (David Keanu Sai, “A Slippery Path Towards Hawaiian Indigeneity: An Analysis and Comparison between Hawaiian State Sovereignty and Hawaiian Indigeneity and Its Use and Practice Today,” 10 Journal of Law and Social Challenges (2008) 119-127). Cleveland, however, was unable to carry out his duties and obligations to restore the situation that existed before the unlawful landing of American troops due to political wrangling in the Congress. The state of war continued.
It is a common misconception that only through a declaration of war by the Congress could a state of war exist for the United States. A Federal court in 1946, however, dispensed with this theory in New York Life Ins. Co. v. Bennion. The Court stated, “it cannot be denied that the acts and conduct of the President, acting in furtherance of his constitutional authority and duty, would constitute a political determination of a state of war of which the courts would take judicial notice. We can discern no demonstrable difference in the supposition and the actual facts, and we therefore conclude that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor [on December 7th].” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).
Therefore, the conclusion reached by President Cleveland that an act of war had been committed by the United States was a “political determination of the existence of a state of war,” and that a formal declaration of war by the Congress was not essential. The “political determination” by President Cleveland regarding the actions taken by the military forces of the United States on January 16, 1893, was the same as the “political determination” by President Roosevelt regarding actions taken by the military forces of Japan on December 7, 1945. Both “political determinations,” being acts of war, created a state of war for the United States. A declaration of war by the Congress was not essential in both situations.
The Duty of Neutrality by Third States
When the President declared that a state of war existed by an act of war committed by the American military in his message to Congress, all of the other 42 States were under a duty of neutrality. “Since neutrality is an attitude of impartiality, it excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further such injuries to the one as benefit the other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 401).
The duty of a neutral State, not a party to the conflict, “obliges him, in the first instance, to prevent with the means at his disposal the belligerent concerned from committing such a violation,” e.g. to deny recognition of a puppet government unlawfully created by an act of war. (Ibid, 496). Twenty of these States violated their obligation of impartiality by recognizing the so-called Republic of Hawai‘i, a United States puppet government created by an act of war committed by the United States on January 17, 1893. These States include:
- Austria-Hungary (January 1, 1895);
- Belgium (October 17, 1894);
- Brazil (September 29, 1894);
- Chile (September 26, 1894);
- China (October 22, 1894);
- France (August 31, 1894);
- Germany (October 4, 1894);
- Guatemala (September 30, 1894);
- Italy (September 23, 1894);
- Japan (April 6, 1897);
- Mexico (August 8, 1894);
- Netherlands (November 2, 1894);
- Norway-Sweden (December 17, 1894);
- Peru (September 10, 1894);
- Portugal (December 17, 1894);
- Russia (August 26, 1894);
- Spain (November 26, 1894);
- Switzerland (September 18, 1894); and
- United Kingdom (September 19, 1894).
“If a neutral neglects this obligation, he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him.” (Ibid, 497). The recognition of the so-called Republic of Hawai‘i did not create any legality or lawfulness on the part of the puppet regime, but rather is the indisputable evidence that these States’ violated their duty to be neutral. Diplomatic recognition of governments occurs during a state of peace and not during a state of war, unless providing recognition of belligerency status. The recognitions were not recognizing the Republic as a belligerent in a civil war with the Hawaiian Kingdom, but rather under the false pretense that the Republic succeeded in a revolution and therefore was the new government of Hawai‘i during a state of peace. As such, their relationship with the Hawaiian Kingdom has since been regulated by humanitarian law.
State of War—No Question
The state of war has ensued to date, only to be concealed by a false narrative promoted by the United States government that Hawai‘i was purportedly annexed in 1898 through American legislation (Sai, Slippery Path, 84-94), coupled with a formal policy of the war crime of denationalizing school children beginning in 1906. The purpose of the policy was to obliterate the national consciousness of the Hawaiian Kingdom in the minds of the children and replace it with American patriotism. Within three generations, the effect of the denationalization was nearly complete.
The Hawaiian Kingdom has been in a “legal” state of war with the United States for over a century and the application of the laws of occupation and applicable humanitarian law has not diminished. Without a treaty between the Hawaiian Kingdom and the United States to return the state of affairs back to a state of peace, the state of war continues. As Judge Greenwood stated, “Countries were either in a state of peace or a state of war; there was no intermediate state.”
This is the longest state of war ever to have taken place in the history of international relations, which has created a humanitarian crisis of unimaginable proportions. International humanitarian laws apply, which includes customary international law regarding war and neutrality, 1907 Hague Regulations and the 1949 Geneva Conventions.
Proceedings to establish an International Commission of Inquiry under Part III of the 1907 Hague Convention for the Pacific Settlement of International Disputes stemming from the Larsen v. Hawaiian Kingdom arbitration held under the auspices of the Permanent Court of Arbitration (1999-2001) were initiated under a Special Agreement dated January 19, 2017. The title for these proceedings is “Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.”
On March 3, 2017, Professor Francesco Francioni was designated by the parties by a supplemental agreement to be the appointing authority, whose function is to form the International Commission of Inquiry. Professor Francioni is an ad hoc judge on the International Tribunal for the Law of the Sea as well as serving as one of five arbitrators in a dispute under the auspices of the Permanent Court of Arbitration, The “Enrica Lexie” Case (Italy v. India). The parties notified the appointing authority that the prospective commissioners shall not United States citizens; must have command of the English language; have expertise in international humanitarian law; and include, at least, one woman.
Article I of the Special Agreement was amended by the parties on March 26, 2017 to allow the Commission to designate a Secretary General to serve as a registry, and for the President of the Commission to work with the Secretary General in order to determine a location for the sitting of the Commission. The only stipulation by the parties is that the sitting shall be in Europe.
This is part 3 of our story trilogy presenting a recent video interview with the fascinating – and controversial – political scientist, Dr. David Keanu Sai.
HAWAII – President Donald Trump’s first weeks in office have been a whirlwind of executive action and controversy. From the Oval Office, Trump’s social media tweets – once seen as inconsequential entertainment – can now carry international ramifications. How the new president handles it all remains to be seen. But he hasn’t minced words about the situation his administration is dealing with.
“To be honest, I inherited a mess,” President Trump said during a recent press conference. “It’s a mess, at home and abroad. A mess.”
Dr. Keanu Sai agrees with him, to some extent.
“They’ve inherited war crimes,” Sai said during a recent interview with Big Island Video News. “He did. He inherited it. And he is the successor of presidents since 1893 who have inherited war crimes committed in Hawaiʻi. Violations of international law of unimaginable proportions.”
Sai earned his Ph.D. from the University of Hawaii for his work on proving the continued existence of the Hawaiian Kingdom. Following the illegal overthrow of Queen Liliʻuokalani in 1893, there was never a legal treaty of annexation, Sai says. According to the political scientist, Hawaii is under a prolonged and illegal occupation, under international humanitarian law. Since the U.S. has not upheld the laws of the occupied state, the issue of war crimes under the Geneva Conventions comes into play.
Sai understands why many people don’t see it that way.
The fact that people in Hawaiʻi are clueless as to what Hawaiʻi was in the 19th century is the evidence of the crime. My great-grandparents were born in the Kingdom in 1880. I know nothing about the Kingdom. That wasn’t because I just didn’t know it. It’s because no one taught me. People did not teach anything because everything had to be Americanized. So, we’re the evidence of the crime. For Donald Trump and his administration, he really has nothing to do with Hawaiʻi. Nothing. Because he’s a president in America. The entities that have everything to do with our situation is the United States Pacific Command and the military here, boots on the ground. Because we’re in a sovereign country. We’re a separate country. Donald Trump is in another separate country. But he is responsible – as the president – for how the military operates here. But he also inherited all the liability of the previous presidents.”
Sai and Trump once shared similar, highly controversial positions on another presidential topic, although they arrived at their conclusions for different reasons. At the same time Donald Trump was trying to prove his predecessor in the White House was not born in the United States, Dr. Sai was lecturing on his own version of the “birther” movement.
Donald Trump, he was the birther man, right? I smiled when he first came out with ‘Barack Obama was not born in the United States’. I actually gave a presentation at NYU – also at Harvard – and it was titled ‘Why the birthers are right for all the wrong reasons.’ Barack Obama was born in Hawaiʻi. He was born at Kapiolani Hospital just about three years before I was born there. I was born in 1964. I believe he was born in 1961. He was not born in the United States, period. But I’m not saying he’s not an American. His mom was an American, so he’s an American citizen. There’s no doubt there. But he’s not natural born. Now, not being natural-born affects your status as a president, because under Article 2 of the United States Constitution the president and vice president have to be natural-born citizens. He wasn’t natural born. If he wasn’t natural-born, then he wasn’t president. If he wasn’t president, what was his administration for eight years? But see, that’s not my problem. That’s the United States’ problem.”
Does Sai believe President Trump has been fully apprised of the political situation in Hawaiʻi? He can only guess.
I would think (Trump’s administration) might want to keep this from (Trump), because he might use that to say he was correct against Barack Obama. The intelligence agencies fully apprised, I know, George W. Bush and Barack Obama. No doubt. Because there were international proceedings were taking place. Now, whether or not the intelligence group is advising Donald Trump about this? I don’t know. I would think they wouldn’t want to tell them because he’s going to take it out of context. Because, you’re talking about a powder keg here that can blow; economically, politically and criminally.”
Sai has been trying to educate the public on this subject for years, chronicling his work on the Hawaiian Kingdom blog. His has traveled the world, lecturing on this topic at the University of Cambridge, filing complaints and entering into proceedings at The Hague. He has recently initiated fact finding Commission of Inquiry as provided for by the Permanent Court of Arbitration, which arose out of the Larsen v Hawaiian Kingdom case.
My job is to fix this problem. There is no doubt that the (U.S.) State of Hawaii – although they’re illegal – they’re in control. To use a metaphor: I’m not about to have this plane called “Hawaiian” airlines, who’s flying high in the sky, disguised as if it’s “American” airlines, painted red white and blue. That paint is chipping off … This is Hawaiian airlines. We are still not in control of our plane but it is our plane. The Kingdom’s still exists. We’re not in control of it. I have to be careful that this plane doesn’t take a nosedive – economically, legally and politically – by people who are incompetent. So, I take every step very seriously to address this problem.”
Sai’s attempt to avoid a “nosedive” was recently thrust into the media spotlight. With the spending practises of the Office of Hawaiian Affairs under scrutiny, Sai’s contract to produce a manuscript on land tenure in Hawaii has become a controversy. The manuscript was never submitted for publication, although Sai was still paid $70,000 by OHA.
Sai even called one of the news stories on the controversial contract “fake news”. Something else he has in common with the Donald.
That goes to the heart as to why I refused – at this stage – to submit this manuscript that implicates all these people for war crimes, until I take the necessary steps to ensure that this plane doesn’t crash. That’s what’s important to me. Whether people believe it or not, it doesn’t matter. Can you falsify it? I’m not asking you to agree. And that’s my background. This is my approach as to how I do things. I take a very practical approach. I’m a retired (military captain). I still am an officer. These are some very hard issues and not everybody can grasp it. But there is no doubt that i know it and I’m responsible for it, because I know it. And that that’s what’s important.”
HILO (BIVN) – Sai, a Ph.D. of political science from the University of Hawaii, says there is much more to the story of his unfulfilled contract with the Office of Hawaiian Affairs to produce a manuscript on Hawaii land title.
HILO, Hawaii – Political scientists Dr. Keanu Sai is objecting to his portrayal in a recent TV news story that reported on a contract he entered into with the embattled Office of Hawaiian Affairs to produce a manuscript on land tenure in Hawaii.
On February 14, Hawaii News Now reported that OHA – currently under pressure to conduct an audit of administrative expenditures – paid $70,000 to a “former felon at the center of the Hawaiian sovereignty debate for a report he never produced,” according to internal agency documents obtained by Hawaii News Now.
The news story reported “Sai said he dropped the study because it would have justified the current land title system, which he believes is illegal,” and that “he’s not returning the money to OHA.”
After the story aired, Sai fired back with an email to reporter Rick Daysog that he says he blind carbon copied to over 300 other recipients.
“I am very disappointed with your story on Hawai‘i News Now that sought to portray me as a fraud,” Sai wrote. “It was very distasteful, disrespectful and irresponsible.”
Sai said the report failed to state his reasoning for not submitting the manuscript for publication. “I’m protecting State of Hawai‘i officials, which includes the OHA Trustees, from criminal liability for committing the specific crimes of pillaging land revenues under international humanitarian law,” Sai wrote. “I will submit it for publication when I am satisfied that I’ve done all that I can to mitigate the criminal liability of State of Hawai‘i officials, even when they don’t believe I’m trying to help them.”
Sai was particularly unhappy with the reference to his felony conviction under Perfect Title, which he wrote about in detail in his email to Daysog.
“When you brought up Perfect Title Company in the interview, I told you that the attacks I received in the 1990s did not address historical facts and laws that apply to land titles in its title reports that the company produced, but rather the slandering of my name and reputation by constantly saying I was advising people to not pay their mortgages. I never did. In fact, I told you that a mortgage is a “security instrument” or “collateral” that secures the repayment of a loan. The loan is what you pay and not a mortgage. With or without a mortgage the borrower still owes the outstanding money left on the loan. As such, Perfect Title Company was advising its clients that they had title insurance to cover their debt owed under the loan. This is a called a lender’s title insurance policy that the lender requires the borrower to purchase in the event that that there’s a defect in title and the mortgage is, as a result, void. When Perfect Title Company’s clients began to file their insurance claims with their title insurance companies, the title companies in Hawai‘i, such as Title Guaranty led by their attorney John Jubinsky, an all out assault began against myself and Perfect Title Company in order to shift attention away from title companies. At a symposium put on at the Hawai‘i Prince Hotel by the Hawai‘i Developers Council in July of 1997 that centered on Perfect Title Company, Bruce Graham, an attorney and instructor of land titles at the William S. Richardson School of Law School and one of the panelists along with myself, admitted to me after that he could not refute Perfect Title’s land title reports. His only comment to me was that America’s here and that’s just how it is. I was not intimidated by this statement because I knew that America had nothing to do with title insurance. It was the title companies in Hawai‘i that would lose. From title insurance policies to the lie that Perfect Title was telling people not to pay their mortgage was absurd but it persisted even today in your story. This is how shallow your story is.
These malicious attacks in the media by the title companies led to a police raid of our office and my arrest for racketeering, tax evasion and theft. These outlandish allegations were unfounded but it was disseminated throughout the media as if I was part of the mafia. They later dropped these outlandish charges and indicted me on a so-called attempted theft of property by doing a title search and showing that the title was defective as a result of the illegal overthrow of the Hawaiian government in 1893. There were no lawful notaries after the January 17, 1893 to acknowledge the transference of title by deed. All titles could not be conveyed after January 17. The title companies and the State of Hawai‘i could not refute this fact. Furthermore, I told you over the phone that real estate is not the subject of larceny or theft. Only personal property, which is moveable, such as a car or cash, is capable of being stolen, but real property, which is immovable, such as real estate, is not capable of being stolen because you can’t move the land therefore you can’t steal it. The whole process was malicious, and where was the media in all of this. They were all complicit and whenever I was interviewed by reporters such as Barbara Marshall or Rob Perez they always twisted what I said in order to maintain their false narrative. I also remember you told me in the interview that you worked with Rob Perez at the newspaper during this time, which I then became very suspect because you apparently have the same bias.”
“I can only surmise that your story fits quite well under the heading of Alternative Facts and Fake News because the real facts apparently don’t matter to you,” Sai wrote at the conclusion of his email.
Sai sat down for an interview with Big Island Video News in an attempt to present his side of the story.
During the interview, Sai also discussed his involvement in a future Fact finding to be conducted through the International Court of Arbitration, and – the big news maker these days – President Donald Trump.
HAWAII ISLAND (BIVN) – A Fact Finding Commission is being initiated at the Permanent Court of Arbitration at The Hague. The new advocate for the Kingdom, Dr. Federico Lenzerini, spoke to Puna residents on Friday.
HAWAII ISLAND – The Counsel and Advocate representing the Hawaiian Kingdom in a recently initiated international fact finding proceeding spoke to a small audience at a Puna home on Friday evening.
Dr. Federico Lenzerini, Professor of International law from the University of Siena Law Department in Italy, talked about the complexities of a new special agreement to form a Commission of Inquiry under the auspices of the Permanent Court of Arbitration at The Hague. Lenzerini spoke in the garage of Kale Gumapac’s Hawaiian Paradise Park home.
Dr. Lenzerini, working alongside Dr. Keanu Sai – a well known political scientist and lecturer at the University of Hawai‘i – said the proceeding picks up where the Larsen v the Hawaiian Kingdom case left off in 2001.
On January 19, 2017, the Hawaiian Kingdom Government and Lance Paul Larsen entered into a Special Agreement to form a Fact-finding Commission that would delve into the alleged occupation of the Hawaiian Kingdom by the United States. Dr. Sai has been working as agent for the Kingdom in the international arbitration.
Over the past week, Lenzerini and Sai have been making the rounds in Hawaii, building awareness of the fact-finding inquiry by filming TV interviews and even making a large presentation at the Kamehameha School Kapalama Campus on January 30.
The Larsen dispute began in 1999. Larsen, a Hawaiian subject, alleged that the Government of the Hawaiian Kingdom is in “continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America”, as well as “the principles of international comity” by allowing “the unlawful imposition of American municipal laws … within the territorial jurisdiction of the Hawaiian Kingdom.”
Documents say Larsen “served an illegally imposed jail sentence resulting directly from the continued unlawful imposition and enforcement of American municipal laws within the Hawaiian Kingdom.”
The dispute was taken up by a Tribunal at the Permanent Court of Arbitration. Both parties were seeking a ruling from the tribunal that would “decide and determine the territorial dominion of the Hawaiian Kingdom under all applicable international principles, rules and practices.”
Dr. Keanu Sai represented the Hawaiian Kingdom as its agent in the proceeding. Dr. Sai maintained the party responsible for the violation of the Larsen’s rights, as a Hawaiian subject, was the United States Government. Both Larsen and the Kingdom agreed “the primary cause of these injuries is the prolonged occupation of the Hawaiian Islands by the United States of America.”
The United States was not a party to the agreement to arbitrate, and did not participate in the proceeding.
In its Award, the Tribunal determined that “there is no dispute between the parties capable of submission to arbitration” and that, “the Tribunal is precluded from the consideration of the issues raised by the parties by reason of the fact that the United States of America is not a party to the proceedings and has not consented to them.”
Although the Tribunal’s award did not make a determination involving the occupation, both Dr. Sai and Dr. Lenzerini say the Kingdom was acknowledged as a State for administrative purposes by the Permanent Court of Arbitration. The proceeding also opened the door to a fact finding inquiry.
“At one stage of the proceedings the question was raised whether some of the issues which the parties wished to present might not be dealt with by way of a fact-finding process,” the Tribunal’s award stated.
“In addition to its role as a facilitator of international arbitration and conciliation,” the Award document states, “the Permanent Court of Arbitration has various procedures for fact finding, both as between States and otherwise.”
The Tribunal noted a new special agreement would be needed between Larsen and the Kingdom before fact-finding could be initiated.
The Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry. However, the costs of the fact-finding process – which amounted in excess of $150,000, participants say, to be bore by the claimant, Mr. Larsen – delayed the action.
In the Special Agreement reached this January, it was decided that the Hawaiian Kingdom will bear the burden of costs for the fact-finding. On January 24, 2017 the International Bureau of the PCA was notified by joint letter to initiate the proceedings. A $10,000 advance deposit has already been made towards the costs.
Lenzerini, with his wife and child by his side, stopped by Gumapac’s house en route to a visit to see the volcanic activity down by Kalapana. Gumapac has worked closely with Dr. Sai on separate matters involving the U.S. occupation which have also been presented at the international level.
The Commission of Inquiry is not a Tribunal, Lenzerini told those assembled in Puna. There will be no judgement, only an evaluation of the facts under the perspective of international humanitarian law.
It is important that the determinations be made public, Lenzerini said, “so it will be possible to spread the knowledge of the history and of the truth of the Hawaiian kingdom within the international community,” since Larson and the Kingdom have agreed to make the findings public.
Next will be the nomination of an appointing authority who will be tasked with nominating the three-member Commission of Inquiry.
The appointing authority must be impartial, competent, and have “a very definite idea about who can be the best personalities to serve as members of the commission,” Lenzerini said.
These rules of international humanitarian law apply to military occupations even where there has been no resistance, as happened in Hawaii at the end of the 19th century.
The Commission of Inquiry will have the task to give an opinion on this point, according to Lenzerini: What is the position of the Hawaiian Kingdom under international humanitarian law, and what are the duties of the Hawaiian Kingdom towards its citizens, “first of all Mr. Larsen, then its citizens living here in Hawaii or abroad, and even aliens. Aliens who come here and are subject to the laws enforced in this land.”
Several rules of international humanitarian law are applicable, Lenzerini says, including pillaging, the obligation to administer the laws of the occupied country, deprivation of public property, and violation of a fair trial, among others.
Lenzerini cautioned those in attendance that “sometimes it is quite hard to guarantee the effectiveness of the rules” of international law.
“There are no avenues to claim respect,” Lenzerini said. Especially when – in this case, the United States – an “indispensable third party” is not a part to the agreement for international arbitration and cannot be bound by a commission’s rulings.
Lenzerini says that a fact finding is different, however. Although there will be no determination, Lenzerini believes the inquiry will provide a forum for the stories of Hawaii’s people to be known by the international community. He expects there could be an opportunity to provide testimony and evidence, depending on the will of the Commission that is formed.
These things usually last for quite a long time. “Talking about years,” Lenzerini said.
According to its website, the Permanent Court of Arbitration (PCA) is “an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Member States.” The PCA is headquartered at the Peace Palace in The Hague, the Netherlands, and “facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.”
Dr. Lynette Cruz, host of “Issues that Matter,” interviews Dr. Federico Lenzerini, Professor of International law from the University of Siena Law Department, Italy, and Dr. Keanu Sai, political scientist and lecturer at the University of Hawai‘i, on the topic of proceedings that have been initiated at the Permanent Court of Arbitration stemming from the Larsen v. Hawaiian Kingdom arbitration case.
Dr. Sai, as Agent, and Dr. Lenzerini, as Counsel and Advocate, represent the Hawaiian Kingdom in these proceedings.
Japan’s Seijo University’s Center for Glocal Studies has published, in its latest journal for 2016, an article authored by Dennis Riches titled “This is not America: The Acting Government of the Hawaiian Kingdom Goes Global with Legal Challenges to End Occupation [this is a hot link to download the article].” The word Glocal Studies is a combination of the words Global and Local Studies.
The study focused on the American occupation of Hawai‘i and its global impact, which includes war crimes. It also included an interview of Dr. Keanu Sai by the author who is a faculty member of Seijo University, Japan. Seijo’s Glocal Research Center is also supported by the Japanese Ministry of Education, Culture, Sports, Science and Technology.
In his concluding remarks of the study, the author wrote:
I became interested in Hawai‘i’s status as an occupied country through an earlier interest in the struggle of Okinawans to have US military bases removed from their territory. I naively thought, like many in Japan, that the US should move these military operations back to Hawai‘i because they rightly belong on American territory. Yet as I compared the two places, I learned that under international law Hawai‘i actually had a stronger claim than Okinawa on the right to reject an American military presence. Unfortunately, Okinawa never had foreign treaties and recognition as an independent state before it was absorbed by Japan. This leaves Okinawa to fight for self-determination through a political negotiation with the Japanese government, and the Japanese government is very committed to its alliance with America. Although Prime Minister Shinzo Abe stated in his speech of August 15, 2015, “We shall abandon colonial rule forever and respect the right of self-determination of all peoples throughout the world,” it is unlikely that he had Okinawans in mind, or anyone specifically, as a people he would assist in becoming independent.
During the interview, as a spokesperson for the provisional government, Professor Sai was careful not to discuss the policy or ideology that a future legitimate government would follow. Those are to be decided by democratic choices that Hawaiians make after the occupation ends. However, it was encouraging to hear Professor Sai, a former US Army captain, express a strong personal view that Hawai‘i’s record as a neutral country is not something that should be up for future debate. It’s a fundamental value that makes the work to restore the nation worthwhile, and it is something that can inspire the global community as well.
There is an increasing global desire for America to scale back its interventionism and close its global network of military bases. The day has come when the world doesn’t want it, and America can no longer afford it. It is ironic that a place that everyone thinks is American is the place that has the strongest chance of using international law to expel the American military presence. Other nations are bound by their treaties and Status of Forces Agreements. It is also inspiring too to think that this will happen in the place that was the last place on the globe to be inhabited by humans, and the last to be contacted by the European explorers who launched the age of Western Empire.
Today, Western science turns its back on earthly problems as it tries to build telescopes and train astronauts to Mars-walk on Hawaiian mountains, but for those who prefer to deal with the home we have, Hawai‘i can be a symbol of our last hope to avoid the catastrophes of environmental destruction and war, just as it was a last hope for the Polynesian explorers who first came in the years of the early Christian calendar—an interesting coincidence considering the peaceful aspirations of Christianity that preceded the meeting of two cultures in Hawai‘i in the 18th century. Now that Japan has reinterpreted its “peace” constitution to allow for overseas deployments in assistance of allies, the world should support Hawai‘i not only for the sake of self-interested realism but more importantly for the role Hawai‘i can play as a new standard bearer of the idea that nations can renounce war, choose neutrality and gain security from a system of international law that protects their sovereignty.
Dr. Lynette Cruz, host of “Issues that Matter,” interviews Dr. Keanu Sai on recent trip to Italy. Dr. Sai was invited to participate in an academic conference in Ravenna, Italy, as well as guest lectures as the University of Siena Law School and at the University of Torino.
UPDATE: Dr. Sai providing expert testimony in State of Hawai‘i v. Kinimaka that the State of Hawai‘i criminal court lacks competent jurisdiction.
Queen Lili‘uokalani was very familiar with the constitutional order of the Hawaiian Kingdom. On April 10, 1877, Lili‘uokalani was appointed by King Kalakaua as his heir-apparent and confirmed by the Nobles of the Legislative Assembly. Article 22, 1864 Constitution, provides, that the heir-apparent shall be who “the Sovereign shall appoint with the consent of the Nobles, and publicly proclaim as such during the King’s life.”
When she was Princess and heir-apparent, she served as the executive monarch, in the capacity of Regent, for ten months when King Kalakaua departed on his world tour on January 20, 1881. Article 33 provides, “It shall be lawful for the King at any time when he may be about to absent himself from the Kingdom, to appoint a Regent or Council of Regency, who shall administer the Government in His name.” She also served as Regent when Kalakaua departed for California on November 5, 1890. On January 20, 1891, Kalakaua died in San Francisco. Nine days later, Lili‘uokalani was pronounced Queen after Kalakaua’s body returned to Honolulu on January 29.
Under Hawaiian constitutional law, the office of executive monarch is both head of state and head of government, which is unlike the British monarch, who is the head of state, and the Prime Minister is the head of government. The Hawaiian executive monarch is similar to the United States presidency. As such, she would have been very familiar with the workings of government as well as its constitutional limitations. More importantly, she would have understood the limits of United States municipal laws that were unlawfully imposed in the Hawaiian Islands in 1900, and the effect it would have on the jurisdiction of American territorial courts.
Not surprisingly, this was reflected in her deed of trust dated December 2, 1909. She stated that, “Trustees shall make an annual report to the Grantor during her lifetime, and after her death to a court of competent jurisdiction.” She further stated that, “a new trustee or trustees shall be appointed by the judge of a court of competent jurisdiction.” A court of competent jurisdiction is a court that has the legal authority to do a particular act.
Her explicit use of the term “court of competent jurisdiction” is very telling, especially when other Ali‘i trusts established under the constitutional order of the Hawaiian Kingdom, namely the Lunalilo Trust in 1874 and the Pauahi Bishop Trust in 1884, which the Queen was well aware of, specifically provided that annual reports must be given to the Supreme Court of the Hawaiian Kingdom for administrative oversight, and that the Hawaiian Supreme Court was vested with the authority to appoint the trustees.
The Queen did not state the “Supreme Court of the Territory of Hawai‘i” in her deed of trust, but rather “a court of competent jurisdiction.” These provisions in her deed of trust also imply that there are courts in Hawai‘i that are without competent jurisdiction, which were the courts of the American Territory of Hawai‘i that existed at the time she drew up her deed of trust in 1909.
The courts of the Territory of Hawai‘i derived their authority under the 1900 Act to provide a government for the Territory of Hawaii. The predecessor of the Territory of Hawai‘i was the Republic of Hawai‘i, which the United States Congress in its 1993 Joint Resolution—To acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii concluded was “self-declared.” The Republic of Hawai‘i’s predecessor was the provisional government, whom President Grover Cleveland reported to the Congress on December 18, 1893, as being “neither de facto nor de jure,” but self-declared as well. Furthermore, Queen Lili‘uokalani, in her June 20, 1894 protest to the United States referred to the provisional government as a “pretended government of the Hawaiian Islands under whatever name,” that enacted and enforced “pretended ‘laws’ subversive of the first principles of free government and utterly at variance with the traditions, history, habits, and wishes of the Hawaiian people.”
As the successor to the Territory of Hawai‘i, the courts of the State of Hawai‘i derive their authority from an Act to provide for the admission of the State of Hawaii into the Union. Both the 1900 Territorial Act and the 1959 Statehood Act are municipal laws of the United States, which is defined as pertaining “solely to the citizens and inhabitants of a state, and is thus distinguished from…international law (Black’s Law, 6th ed., p. 1018).” In order for these laws to be applied over the Hawaiian Islands, international law, which are “laws governing the legal relations between nations (Black’s Law, 6th ed., p. 816),” requires the cession of Hawaiian territory to the United States by a treaty prior to the enactment of these municipal laws. Without a treaty of cession, the Hawaiian Islands remain outside of United States territory, and therefore beyond the reach of United States municipal laws.
Oppenheim, International Law, vol. I, 285 (2nd ed.), explains that, cession of “State territory is the transfer of sovereignty over State territory by the owner State to another State.” He further states that the “only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State (p. 286).” There exists no treaty of cession where the United States acquired the territory of the Hawaiian Islands under international law. Instead, the United States claims to have acquired the Hawaiian Islands in 1898 by a Joint Resolution—To provide for annexing the Hawaiian Islands to the United States. Like the 1900 Territorial Act and the 1959 Statehood Act, the 1898 Joint Resolution of Annexation is a municipal law of the United States, which has no effect beyond the territorial borders of the United States.
In 1936, the United States Supreme Court, in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory.” The following year, the Supreme Court, in United States v. Belmont, 301 U.S. 324, 332 (1937), again reiterated that the United States “Constitution, laws and policies have no extraterritorial operation unless in respect of our own citizens.” These two cases merely reiterated what the Supreme Court, in The Apollon, 22 U.S. 362, 370, stated in 1824 when the Court addressed whether or not a municipal law of the United States could be applied over a French ship—The Apollon, in waters outside of U.S. territory. In that case, the Supreme Court stated, “The laws of no nation can justly extend beyond its own territories except so far as regards its own citizens.”
Although the 1898 Joint Resolution of Annexation has conclusive phraseology that makes it appear that the Hawaiian Islands were indeed annexed, the act of annexation, which is the acquisition of territory from a foreign state, could not have been accomplished because it is still a municipal law of the United States that has no extraterritorial effect. In other words, a treaty is a bilateral instrument, whereby one state cedes territory to another state, thus consummating annexation in the receiving State, but the 1898 Joint Resolution of Annexation is a unilateral act that is claiming annexation occurred without a cession evidenced by a treaty.
As a replacement for a treaty that signifies consent by the ceding State, the resolution instead provides the following phrase: “Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies.” In The Apollon, the Supreme Court also addressed phraseology in United States municipal laws, which is quite appropriate and instructive in the Hawaiian situation. The Supreme Court stated, “however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction to places and persons, upon whom the legislature has authority and jurisdiction (p. 370).”
It would be ninety years later, in 1988, when the United States Department of Justice, Office of Legal Counsel, would stumble over this American dilemma in a memorandum opinion written for the Legal Advisor for the Department of State regarding legal issues raised by the proposed Presidential proclamation to extend the territorial sea from a three mile limit to twelve. After concluding that only the President and not the Congress possesses “the constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States (p. 242),” the Office of Legal Counsel also concluded that it was “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea (p. 262).”
The opinion cited United States constitutional scholar Westel Woodbury Willoughby, The Constitutional Law of the United States, vol. 1, §239, 427 (2d ed.), who wrote in 1929, “The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. …Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature enacted it.” Nine years earlier in 1910, Willoughby, The Constitutional Law of the United States, vol. 1, §154, 345, wrote, “The incorporation of one sovereign State, such as was Hawaii prior to annexation, in the territory of another, is…essentially a matter falling within the domain of international relations, and, therefore, beyond the reach of legislative acts.”
Since January 17, 1893, there have been no courts of competent jurisdiction in the Hawaiian Islands. Instead, genocide has taken place through denationalization whereby the national pattern of the United States has been unlawfully imposed in the territory of an occupied sovereign State in violation of international humanitarian law.
On April 29, 2016, Dr. Keanu Sai served as an expert witness for the defense represented by Dexter Kaiama, Esquire, during an evidentiary hearing in criminal case State of Hawai‘i v. Kinimaka. Kaiama filed a motion to dismiss the criminal complaint on the grounds that the court lacks subject matter jurisdiction because the court derives its authority from the 1959 Statehood Act, which is a municipal law enacted by the United States Congress that has no effect beyond the borders of the United States.
In response to the Court denying the motion to dismiss in light of the fact that the prosecution did not refute any of the evidence provided in the evidentiary hearing, Kaiama is preparing to file a motion for interlocutory appeal to the Intermediate Court of Appeals. Because the prosecution did not provide any rebuttable evidence against the evidence presented by the defense that provided a legal and factual basis for concluding that the Hawaiian Kingdom continues to exist as an independent and sovereign State that has been under an illegal and prolonged occupation, the trial Court should have dismissed the case. If there was to be any appeal it would be the prosecution and not the defense. Denying a person of a fair and regular trial is a war crime under Article 147, 1949 Geneva Convention, IV.